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The Dominion
April 12 1995
Why creche workers won $1 million judgment
by Murray Williams
On
March 16 Judge Tom Goddard, in an interim judgment, ordered the Christchurch
City Council to pay $1 million compensation to 13 former employees sacked
when a creche was closed amid allegations of child abuse. Yesterday, in a
supplementary judgment, he gave his reasons. Murray Williams reports
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TOMORROW: A retired policeman raises
serious doubts about investigation techniques
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JAN BUCKINGHAM'S youngest son was present when police searching her house
discussed the possibility of finding dead babies behind wall panelling, a
supplementary judgment on the creche case says.
The former creche worker was kept separate from her son, who was off school
with asthma, while police searched his room and questioned him, according to
an appendix in the fuller version of Employment Court Chief Judge Tom
Goddard's decision.
The appendix, which sets out the effect of the closure on the staff, is part
of the judgment made public yesterday, nearly a month after an interim
decision ordering the Christchurch City Council to pay more than $1 million
in compensation to 13 former staff.
The council has lodged an appeal and is now obtaining legal opinions from its
counsel and an Auckland Queen's counsel. A full meeting of the council will
decide whether to proceed after the opinions have been received and studied.
The staff were sacked on September
3, 1992, after police, education and social welfare officials
told the council to close the creche, after the arrest of former worker Peter
Ellis on 45 child sex abuse charges and before four women colleagues were
charged.
The four, who were discharged after a marathon preliminary hearing and before
going to trial in the High Court, were awarded the bulk of the compensation
plus the $89,000 they spent on legal fees.
Judge Goddard's interim decision criticised the council strongly for
breaching its obligations as employer and closing the creche with no evidence
of wrongdoing on the part of staff, other than Ellis, who was later jailed
for 10 years on a "substantial number" of charges of abusing
children at the creche before 1992.
In his fuller judgment, foreshadowed on March 16 when he said he had given
"only skeletal" reasons for his decision, Judge Goddard said the
council had never suggested any improper behaviour, let alone any abuse or
sexual abuse of children by any of the applicants.
The creche had built an enviable reputation among parents and child-care
workers over the 14 years it operated and had survived the arrest of Ellis,
the judgment said.
~~~~~~~~
LOOKING AT each applicant's story under the "melancholy heading"
used in most briefs of evidence, Life after September 3, 1992, it said the council had not
challenged the applicants' "pitiable experiences", except to point
out that it was not responsible for the actions of police in arresting the
four women.
Nor had the council been responsible for the behaviour, and publicity, to
which all the applicants were subjected.
There was no reason for scepticism about their uncontradicted evidence, and
it was accepted as reliable, Judge Goddard said.
His appendix described how former supervisor Gaye Davidson was at a recent
concert when one of the complainant parents, an entertainer, saw her in the
grounds and used the public address system to call out "Beware, beware,
there is a child molester out there!" A third worker, whose name was
suppressed, was told former creche staff should have Child Molester tattooed
on their forehead.
Ms Buckingham said she had expected some staff members would be arrested for
negligence after former colleague Peter Ellis was charged with child sex
offences, but it had never crossed her mind that allegations of abuse would
be made.
~~~~~~~~
AFTER WAKING to find several police in her bedroom Ms Buckingham said she was
given a search warrant. Police then climbed on to the roof, looked down the
chimney, dredged the goldfish pond and tapped the walls, discussing the
possibility of finding dead babies.
The day before the creche staff were sacked former city council manager John
Gray had been asked to receive a delegation from the Education Ministry,
Social Welfare Department and police. He had been surprised to find seven
people, including a police inspector, a detective senior sergeant and a
representative of the crown solicitor, and arranged for the city solicitor to
be present.
The inspector said there were police investigations concerning the creche,
but when pressed he would not say what they were and said even the mayor
could not be told.
Mr Gray realised, however, that the investigations were into current
suspected child abuse by current staff and was then told police were
satisfied children were in serious danger and the creche should close no
later than 1pm that day.
He was also told that disclosure of police concerns to him might prejudice
investigations, but their concerns were such that the department and ministry
had been told.
"Mr Gray thought that this was significant as indicating the substance
of police concerns. No doubt he was meant to think that."
Though Mr Gray "very properly" explained he could not act without
details, the police and others continued to refuse to disclose anything, but
they did accept that closing a creche at 1pm would cause difficulties for parents.
The closure the following day was to start New Zealand's longest preliminary
lower court hearing, during which the court heard of bizarre satanic-type
abuse of children, some of whom were said to have been hung in cages or
secreted in ceilings in an old house in Hereford St near the creche.
Judge Goddard said none of the children to whom the charges against the women
related was enrolled in 1992.
He said their counsel, Graham Panckhurst QC, had predicted that evidence of
"anguish, humiliation and indignities" suffered by the applicants
would be harrowing.
Responsibility for much of it could not be laid at the council's door, and
reflected the ignorance of some members of the public and the attitudes which
prevailed on the part of individuals, including certain police officers.
The council's actions, however, had greatly aggravated the situation, Mr
Panckhurst said, and the counsel for another applicant said a "person
wishing to write a horror story about the worst way of effecting a dismissal
could not have imagined anything of the character of what unfolded here, with
the council telling the public that its staff had been engaged in child
abuse". All workers were entitled to the trust, respect and loyalty of
their employer. They had not received it and no amount of money could undo
the damage.
Judge Goddard said Mr Gray condemned or at least criticised staff without
giving them a chance to correct or contradict allegations.
The effect of not doing so could be seen by asking what people were likely to
have thought of the abrupt closure, followed a month later by the arrest of
four staff.
The questions answered themselves. Everyone would have thought the council
had evidence that the staff were either guilty of offences against children
or of complicity in the offences of others.
~~~~~~~~
THE JUDGE said the ministry would have found it hard to justify suspending
the creche licence without giving a reason, had the council sought one. The
council had a duty to resist all inducements, however strong and persuasive,
to breach its employment contract.
"It is not really surprising that nothing has emerged to show that
children at the creche on September
1, 1992 were in danger or at risk, nor does the council suggest
that . . . (it) merely shows the danger of acting on rumour, speculation or
the untested opinions of others, however imposing those others may
seem."
The women's first lawyer, Gerald Nation, had decided before the preliminary
hearing that the charges were unsustainable and the police should
"exercise common sense and withdraw", the judgment said.
Mr Nation had written a long letter to the crown solicitor in Christchurch repeating
a suggestion he had made to one of the detectives that there could be merit
in interviewing the defendants objectively.
He pointed out that they had been arrested without being asked any questions
and said he had never before or since written such a letter to the police.
The police were not persuaded, however. Later Ms Gillespie, then Ms
Buckingham, Mrs Keys and Ms Davidson were discharged under section 347 of the
Crimes Act -- the equivalent of an acquittal -- on three grounds, one of
which was that the evidence against them did not justify their trial.
The substance, or lack of it, in the charges against the women was of peripheral
relevance, and called for no conclusion from the Employment Court, but Judge Goddard
noted that Mr Panckhurst's opening submissions had not been opposed by the
council's lawyer.
What Mr Panckhurst said had been supported by Judge Williamson when he discharged
the three accused -- "particularly that the identification of the three
came only in the fourth interview of the child and that the fourth and fifth
interviews contained more bizarre and wilder types of allegations than are
known to have any firm base in common human experience of child sex abuse or
perverted criminal activity".
Other children named by the child as being present had not identified the
accused, while other creche workers the child implicated had not been
charged.
As a result the first four applicants had been put to very great expense. The
days when a criminal trial could be defended for a fee equivalent to two or
three weeks wages were gone and now a person's life savings could be
consumed, as had happened to the women, Judge Goddard said.
When Ms Buckingham was unable to contact her lawyer she decided it was safe
to answer questions and agreed to go to the police station for further
questioning because she felt she would be arrested if she refused and did not
want her son to see that happen.
~~~~~~~~
SHE WAS finally arrested at 3pm,
without being told what crime she was being charged with, though she was told
there were four charges. None of the allegations were ever put to her by the
council.
Ms Buckingham told the court that her partner was working but she was
insolvent and was paying off her legal costs.
The closure had cost her a satisfying job and left her with severe panic
attacks and no confidence in herself or "the system".
"My life is awful, absolutely awful and I cannot see an end to this
treadmill."
Ms Davidson said she had been under some pressure to resign after Ellis's
arrest, but had resisted and fought for survival of the creche, in which she
and her staff believed. A good positive feeling had been building up again
when it was closed, which she said was devastating and rather like learning
of a sudden death.
A "vast amount of publicity" followed and to obtain some peace Ms
Davidson and colleagues Deborah Gillespie and Marie Keyes agreed to appear on
television and make a statement after being followed to a meeting at the
office of their union.
Ms Davidson said she telephoned her solicitor when her house was searched on
October 1 but felt she had nothing to hide or fear and co-operated with the
police before she was arrested three hours later.
Though she said she found it hard to understand in hindsight the way she
dealt with it, she said she did not really appreciate what she was being
charged with and thought the exercise was a police ploy as she knew the
allegations had no substance.
Since then she had dyed her hair so she could go out in public, taken
anti-depressants and had to deal with a depressed and suicidal youngest son,
who had since returned to school.
Death threats, including a bullet received in the mail with her name engraved
on it, were reported to the police and investigated without result and Judge
Goddard said Ms Davidson implied they did not try hard enough.
Ms Gillespie, who was the first of the four women to be discharged, told of
panic attacks and feeling devastated that she could not say goodbye to
children or parents.
She said she had been followed, abused, harassed and intimidated, losing
confidence in everything, including herself, and losing friends, including a
former partner who testified against her.
Anti-anxiety medication and sleeping pills had been prescribed and she had
been hospitalised after a breakdown last November.
Working with children again was out of the question -- "A few months ago
a child ran into her in a shop and she realised afterward that she was
holding her hands up in the air" -- and a job of any sort was highly
unlikely.
Her brief concluded: "I think the council should have stood by us as our
employer and allowed the whole matter to be investigated. But they didn't.
They assumed we were guilty. I think it appeared to the public that (it) was
washing its hands of us. The public perception in the changing of the locks,
the closing down of the creche overnight with no explanation and not giving
the workers references was one of that we must have been guilty. There could
have been another solution. It was not the council's job to assume our
guilt."
Mrs Keys said she was appalled that the council had done nothing to
investigate and substantiate claims people were making against them. If they
had been she would have denied them "totally and utterly".
If the council had acted differently reason and logic might have prevailed.
The dismissal had also been a financial disaster for the family because her
husband had just been made redundant and was still unemployed.
She said she was still unemployed and her work experience at the creche
counted against her when she applied for jobs, but she was beginning to
believe that she could work again, though not as a teacher or childcare
worker, for which she was trained.
~~~~~~~~
OF THE OTHER applicants, whose names Judge Goddard suppressed permanently
because previous publicity had been limited, some had built new lives and
others had raised valid concerns for elderly parents or young children, and
told of feeling shocked and confused when the creche closed.
Applicant A was terrified she might be arrested and she felt very angry about
the loss of a job with children she loved as if they were part of her family.
Applicant B said if it was necessary to fire someone she could not imagine a
worse way to do it. It was cruel and what was worse, the workers had no idea
why. The council must have known that not all of the staff could have been
paedophiles.
She said lawyer Mr Nation had told her a child had named her and made an
allegation so she cleaned her house and waited for the police to come, but
they never did.
Another applicant said she was so scared Social Welfare might decide she was
an unfit mother that she a suffered a stress attack and underwent
counselling.
She would have understood the council's position if it had handled the
closure professionally. Instead, its actions were "vicious, cruel and
very traumatic. In that instant they absolutely obliterated my
profession".
The woman said she became unemployable. She was offered a job at a
playcentre, but the parents group refused to endorse the appointment.
Applicant D said she had been abused, shouted at, avoided by creche parents
-- one of whom had been reluctant to enter a lift with her -- and experienced
a number of hoax phone calls.
Her confidence had plummeted, her health had suffered and her credibility as
a professional childcare worker had been undermined critically.
When applicant E arrived late for the meeting held to announce the closure
she found shocked, bewildered and crying workers, but thought the council
would realise a mistake had been made and they could come back to work.
She said her house was searched for several hours and she was questioned at
the police station for three hours.
"She is not aware of the allegations against her and does not know what
police were searching for . . . during her questioning she was asked if she
had ever protested against the Springbok tour and whether she was a
heterosexual . . . she was never charged."
Applicant F said she felt a physical pain of withdrawal from the creche
children, who were like her own, and went through a grieving process as if
there had been a death in the family. "She does not believe she will
work with children again and avoids them.
"She is very conscious of any interactions she had with children. She
considers this ought not to have happened to her. She was innocent, as were
the other women, and yet innocence was not enough, for now even normal
touching can be misconstrued."
Applicant G initially believed that all her friends, the children, parents
and other people who had been associated with the creche would know she had
done nothing wrong and would support and understand her.
"She discovered that she could not have been more wrong."
A week after the closure a woman whom she knew from the creche approached her
in a crowded shop and told her that all the staff should have Child Molester
tattooed on their foreheads.
She was stunned to be so publicly embarrassed and humiliated by a person from
whom she had expected support and understanding and said she felt harassed by
phone calls from police officers, one of whom asked her to come to the police
station for an interview at 10pm.
Some creche parents were openly hostile and the case affected her so much
that she changed the colour and style of her hair, moved house, changed her
telephone number and sold her car after excrement was smeared over the bonnet.
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